Ideas & Images

Why Are Pruitt’s Basketball Tickets Not a Bribe?

On June 3, the New York Times reported that Scott Pruitt was given access, allegedly at market value, to University of Kentucky basketball tickets in a section that is reserved for ticketholders who donated at least $1 million to the university. Other perks were attached to the tickets, including watching from the players’ entrance as the team entered the playing court. The “market value” apparently was $130 per ticket, paid in cash and there is no receipt. An email from the ill-named EPA Ethics Office approved the purchase in advance in the belief that it would be paid by check.

The seats belonged to Joseph W. Craft III, a coal executive who gave more than $2 million to the Trump presidential campaign. According to the NYT report, Craft met with Pruitt seven times or more during Pruitt’s first 14 months as head of the Environmental Protection Agency. The “or more” results from the fact that the NYT has documents showing that Pruitt and Craft were scheduled to meet on two other occasions but, curiously, “officials would not confirm them.” The known and scheduled contacts occurred at meetings and speeches in Washington, Florida, Kentucky and Georgia.

As discussed at length in the NYT article, Craft has been aggressively pursuing the rollback of environmental restrictions on the coal industry. Pruitt, with the overt support of Donald Trump, has been happy to oblige, including, for example, repealing the Obama instituted Clean Power Plan to reduce greenhouse gas emissions from power plants and stopping enforcement of a rule prohibiting coal-powered plans from dumping toxic metals into rivers. The latter move was sought by a coal industry group on whose board Craft sits.

So, as you and your progeny experience worse air and water pollution and possible cancers and other adverse health consequences down the road, you have Scott Pruitt and Donald Trump to thank.

Returning to the main point of this post, I understand the notion that paying someone market value for an item can be seen as “not a gift” but a mere purchase like any other purchase. Clearly, when you buy something on Amazon, even at a discount from other available prices, no one would rationally argue that Amazon made a gift to you.

However, if you are exploiting a personal relationship with Jeff Bezos, the head of Amazon, who is selling you an item at a market price but it is an item that cannot be bought anywhere else unless you are a person of similar economic standing and advantage as Bezos, that, in my view, is quite another matter. To put the obvious meat on that bone, if Bezos has tickets behind home plate for the World Series, and if Bezos wants something you have or you have the power to deliver or even materially influence on his behalf, it is clear, I suggest, that Bezos would have effectively bribed you by “selling” his World Series tickets to you, even if you paid full price. You could not have bought those tickets in the open market and, even if you could get them on, say, StubHub, it would be most efficient, not to mention friendly, to accept the offer from your pal, Jeff.

Here are the relevant elements of the basic federal bribery statute:

18 U.S. Code § 201 – Bribery of public officials and witnesses

(a) For the purpose of this section—

(1) the term “public official” means … an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof ….;

(3) the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.

(b)Whoever—

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official… or offers or promises any public official to give anything of value to any other person or entity, with intent— [bold face emphasis added]

(A) to influence any official act; or

(B) to influence such public official… to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) to induce such public official … to do or omit to do any act in violation of the lawful duty of such official or person;

(2) being a public official … directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for: [bold face emphasis added]

(A) being influenced in the performance of any official act;

(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) being induced to do or omit to do any act in violation of the official duty of such official or person;

(3) ….

(4) ….

shall be fined under this title or not more than three times the monetary equivalent of the thing of value whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

(c)Whoever—

(1) otherwise than as provided by law for the proper discharge of official duty—

(A) directly or indirectly gives, offers, or promises anything of value to any public official … for or because of any official act performed or to be performed by such public official … [bold face emphasis added] or

(B) being a public official … otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person;

….

(3) directly or indirectly, demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon any such trial, hearing, or other proceeding, or for or because of such person’s absence therefrom; [bold face emphasis added]

shall be fined under this title or imprisoned for not more than two years, or both.

In case you’re wondering, 18 U.S, Code § 641 defines “value” as “face, par, or market value, or cost price, either wholesale or retail, whichever is greater.” The Department of Justice describes the two core sections of 18 U.S. Code § 201 as “bribes” versus “gratuities.” The critical difference is the lesser, but still significant, penalty for a “gratuity.” https://bit.ly/2p2S0nU

I cannot claim expertise in the field of bribery of federal officials, but on the face of it, I do not understand how the sale, at any price, of restricted access tickets to a sports event is not the offer and acceptance of a thing of value and, in the obvious circumstances of this case and the relationship between Pruitt and Craft, therefore a bribe under 18 U.S. Code § 201. Add this to the long list of questionable actions by Pruitt, which have led to at least a dozen investigations into his conduct. I invite anyone with expertise in the area to enlighten me regarding how the sale of highly restricted sports tickets to the head of an agency that is being solicited to undertake acts in favor of the seller’s interests is not a bribe.

Actually the Supreme Court (unanimously) held that the lower courts’ interpretation of “official act” was too broad, encompassing normal political constituent services. The jury instructions were thus overly broad. “Official acts” was interpreted to require some decisional act with force of law, such as, in exchange for something of value, an agreement to undertake to bring about a particular course of government action. The case was sent back for further consideration in light of the narrower scope of “official act” but I believe it was dropped because the nexus was missing between the gifts and other benefits bestowed on the Governor and his wife, on the one hand, and the Governor’s engagement is specific actions to change government conduct or outcomes in favor of the donor. If my understanding of what has gone on with Pruitt is correct, his conduct would clearly fit “official act” as the Supreme Court interpreted it. Moreover, Pruitt is not a politician analogous to a state governor; he is an appointed head of a federal agency. What might be “normal conduct” for a politician is not what we expect from the head of federal agencies. In my opinion.